Rosser v. Morris, 2012–CA–00585–COA.

• Decision Date: 08 April 2014
• Docket Number: No. 2012–CA–00585–COA.,2012–CA–00585–COA.
• Citation: 135 So.3d 945
• Court: Mississippi Court of Appeals
• Parties: Laura K. Strickland ROSSER, Appellant v. Abraham J. MORRIS, Appellee.

135 So.3d 945

Laura K. Strickland ROSSER, Appellant

v.Abraham J. MORRIS, Appellee.

No. 2012–CA–00585–COA.

Court of Appeals of Mississippi.

April 8, 2014.

David M. Sessums, Penny B. Lawson, Vicksburg, attorneys for appellant.

Marc Darren Amos, Columbus, attorney for appellee.

Before LEE, C.J., BARNES and ISHEE, JJ.

BARNES, J., for the Court:

¶ 1. The County Court of Warren County awarded permanent custody of Kathryn Morris, a minor child, to her natural father, Abraham Morris (Abe). The trial court granted the child's mother, Laura Strickland Rosser, visitation and ordered her to pay child support. Laura appeals the trial court's order, and finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Laura and Abe are the natural parents of Kathryn, who was born out of wedlock on March 3, 2007. The couple ended their relationship a few months after Kathryn's birth, and on December 5, 2007, Laura filed a complaint for paternity and other relief against Abe in the County Court of Warren County. ¹ Laura asserted that Abe was Kathryn's biological father and requested child support. Abe did not contest paternity and filed a counter-petition for custody and support.

¶ 3. On February 14, 2008, the county court adjudicated Abe as Kathryn's natural father and awarded Laura “permanent care, custody and control” of the minor child and child support of $600 per month. The court withheld ruling on visitation, however, due to several issues concerning Laura's and Abe's ability and willingness to care for the child. The couple held extreme animosity toward one another, as did the minor child's grandmothers. Therefore, a guardian ad litem was appointed, and the parties eventually agreed on visitation on April 17, 2008. The county court also reserved the right to enter additional orders or modify the current order.

¶ 4. On April 2, 2009, the county court held a hearing regarding multiple motions for contempt that had been filed. Still concerned about Laura's and Abe's ability to take care of the child, due to Laura's alcohol abuse and Abe's issues with anger, the trial judge issued a temporary order, requiring psychological evaluations of Abe and Laura, and awarding temporary joint custody to Kathryn's maternal and paternal grandmothers. The order stated that Kathryn was to spend alternating two-week periods at each grandmother's home. Abe's parents lived in Columbus, Mississippi; Laura's parents lived in Vicksburg, Mississippi. The court's order further dictated that neither Abe nor Laura be left alone with the child.² As a result of the court's order, Laura entered rehabilitative treatment for drug and alcohol abuse, and Abe began psychological treatment for his issues with anger and anxiety.

¶ 5. Shortly following the entry of the court's temporary order, Abe moved into his parents' home in Columbus and helped take care of Kathryn during her two-week visits. Abe has worked since that time as a salesman at various car dealerships in Columbus. He has also been receiving regular psychological treatment for his anger issues.

¶ 6. Seeking employment opportunities, Laura moved to Dallas, Texas, in December 2009. She initially lived with her aunt, but she moved into an apartment in March 2010. She subsequently met Brad Rosser through her church and married him. Since her move to Dallas, Laura has been employed full-time as a outside sales representative for a radio station.

¶ 7. A hearing on permanent custody was held on June 6–7, 2011. The trial court entered a memorandum opinion on October 25, 2011, awarding permanent custody to Abe based on its analysis of the factors set forth by Albright v. Albright, 437 So.2d 1003 (Miss.1983).³ The opinion stated the parties had thirty days to reach an agreement on visitation, child support, health insurance, and “any other matters that need to be addressed.” Laura filed a motion for reconsideration on January 4, 2012; Abe filed a reply on January 13, 2012.⁴ On March 12, 2012, the trial court denied both motions and entered an agreed order, granting “reasonable visitation” to Laura and ordering her to pay child support in the amount of fourteen percent of her adjusted gross income. Laura has filed a timely notice of appeal, challenging the trial court's findings regarding certain Albright factors and claiming that a material change in circumstances has occurred that warrants a change in custody. Finding no error, we affirm the judgment.

DISCUSSION

I. Whether the trial court's application of the Albright factors was in error.

¶ 8. In appeals concerning child custody, the “polestar consideration” is the best interest of the child. O'Briant v. O'Briant, 99 So.3d 802, 805 (¶ 12) (Miss.Ct.App.2012) (citation omitted). “We may only reverse a child-custody determination if the [trial judge] is manifestly wrong, clearly erred, or applied an erroneous legal standard.” Id. at (¶ 13). If the trial court “properly applies and considers the child-custody factors from Albright, there is no manifest error.” Id. (citing Smith v. Smith, 614 So.2d 394, 397 (Miss.1993)).

¶ 9. In Albright, the Mississippi Supreme Court set forth several factors to consider in determining child custody:

(1) age, health, and sex of the child;

(2) a determination of the parent that has had the continuity of care prior to the separation;

(3) which has the best parenting skills and which has the willingness and capacity to provide primary child care;

(4) the employment of the parent and responsibilities of that employment;

(5) physical and mental health and age of the parents;

(6) emotional ties of parent and child;

(7) moral fitness of the parents;

(8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law;

(10) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship.

Jordan v. Jordan, 105 So.3d 1130, 1133 (¶ 12) (Miss.Ct.App.2012) (citing Albright, 437 So.2d at 1005). After addressing the Albright factors, the trial judge concluded that awarding permanent custody to Abe was in Kathryn's best interest. However, Laura claims that the trial court made erroneous findings in its application of certain Albright factors contained in the October 25, 2011 memorandum opinion.⁵ We will address these specific factors in turn.

i. Age, Health and Sex of the Child

¶ 10. The trial judge found that this factor favored neither parent. Laura asserts that since Kathryn was a young girl, approximately four years old at the time of trial, this factor should have favored her, and she should have been granted custody. As this Court recently noted in Crabb v. Bowden, 110 So.3d 346, 350 (¶ 12) (Miss.Ct.App.2013):

Under Mississippi Code Annotated section 93–5–24(7) (Rev.2004), awarding either legal or physical custody to the mother is no longer presumed to be in the child's best interest. Although the tender-years doctrine was “significantly weakened” by section 93–5–24(7), “there is still a presumption that a mother is generally better suited to raise a young child.” Passmore v. Passmore, 820 So.2d 747, 750 (¶ 9) (Miss.Ct.App.2002).

¶ 11. During the testimony of Abe's mother, Judy Morris, the trial judge did express concern regarding Abe's ability to take care of a young girl. To address the court's concern, Abe and Judy testified that Abe had been very involved in Kathryn's daily care. Judy stated: “And like I say, [Abe's] done this since Kathryn's been in the world. He's changed her diaper, and given her baths[.]” Abe also testified that he helps his daughter get ready for bed a couple of times a week and that he plays games and reads to her regularly. He told the trial judge, “I would have a more hard understanding to take care of a boy because for [four] years[,] I've learned how to take care of a girl.” While Laura, as the mother, is presumed better suited to care for a young child, the record reflects that she had a lot less contact with Kathryn than Abe. This was due to her lack of physical proximity to Kathryn, since Laura lived in Dallas, six hours from her mother's home in Vicksburg.

¶ 12. In regard to the child's health, testimony showed that Kathryn was healthy and “age-appropriate.” She had a designated pediatrician in Columbus, and Abe occasionally attended those doctor's appointments. Laura's mother stated there had been no need for Kathryn to have a doctor when she stayed with her in Vicksburg. In its opinion, the trial court noted that Laura “does not know who her daughter's doctors are and has not inquired.”

¶ 13. We find no error in the trial court's finding that this factor favored neither parent.

ii. Determination of the Parent Who Has Had the Continuity of Care Prior to the Separation

¶ 14. Although the trial court stated that this factor favored Abe, Laura argues that this factor should not have favored either party, since it was evident that the Kathryn's grandmothers had provided the majority of the child's care for the previous two years.

¶ 15. There is little evidence regarding the child's care prior to the trial court's April 2009 temporary order. Abe went to live with his parents after entry of the temporary order and had daily contact with his daughter during the two weeks per month that she lived with his mother. He saw Kathryn every morning and helped put her to bed at night. At the June 2011 hearing, Abe expressed knowledge of Kathryn's school curriculum and her educational milestones, such as letters and numbers. When asked at the hearing how he would “deal with” obtaining custody, Abe stated:

No different than right now. The only difference is I would have to do it more often. I already dress Kathryn. I already bathe Kathryn. I already brush her teeth. I already brush her hair. I can braid her hair. I mean, you know these things I can already do.

The trial judge concluded: “It is clear that the primary caregiver for Kathryn while she has been in Columbus has...